National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 [2020] AUPJCHR 37 (26 February 2020)

1.2 The committee seeks a response from the relevant minister with respect to the following bills.

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National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures)

Purpose	This bill seeks to amend the National Radioactive Waste Management Act 2012 to establish the National Radioactive Waste Management Facility
Portfolio	Industry, Science, Energy and Resources
Introduced	House of Representatives, 13 February 2020
Rights	Culture; self-determination; equality and non-discrimination
Status	Seeking additional information

1.3 The bill seeks to amend the National Radioactive Waste Management Act 2012 (the Act) to establish a single, purpose built National Radioactive Waste Management Facility (Facility) for the disposal of radioactive nuclear waste. The bill would specify the site on which the Facility would be established and operated, which is named in the bill as Napandee, located in the district council of Kimba in South Australia (the site).

1.4 The specification of the site as one where nuclear waste will be stored appears to engage and may limit the rights to culture and self-determination. The statement of compatibility states that native title rights have been extinguished at the specified site, however, 'Aboriginal heritage, either tangible or intangible, may still be present'.^[2]

1.5 The right to culture provides that people have the right to benefit from and take part in cultural life.^[3] Individuals belonging to minority groups have additional protections to enjoy their own culture, religion and language.^[4] The right for minority groups has both an individual and a group dimension: while the right is conferred on individuals, it must be exercised within the minority group. In the context of indigenous peoples, the right to culture includes the right for indigenous people to use land resources, including through traditional activities such as hunting and fishing, and to live on their traditional lands. The state is prohibited from denying individuals the right to enjoy their culture, and may be required to take positive steps to protect the identity of a minority and the rights of its members to enjoy and develop their culture.^[5] A limitation on the right to culture will be permissible where it pursues a legitimate objective, is rationally connected to this objective and is a proportionate means of achieving this objective.

1.6 The right to self-determination, which is a right of 'peoples' rather than individuals, includes the right of peoples to freely determine their political status and to freely pursue their economic, social and cultural development.^[6] This includes the right of groups within a country, such as those with a common racial or cultural identity (in the Australian context, particularly Indigenous people), to have a level of internal self-determination.

1.7 The statement of compatibility states that the bill engages the right to culture because the development of the Facility on the specified site may impinge on the freedom of people to engage in certain cultural practices on that land. However, it states that it is unlikely that the right is directly affected as the specified site is privately owned and used for agricultural purposes and that there are currently no identified registered places or objects of cultural significance for Aboriginal people on the specified site.^[7] It also states that should a culturally significant finding be made on the specified site in the future, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) will operate to provide protections for cultural heritage or archaeologically significant sites or artefacts. However, if the site is being used to store radioactive waste, it is unclear how the EPBC Act will operate to ensure appropriate protection for cultural heritage.

self-determination is engaged by the bill, but seems to state that the local community near the area of the site, which would appear to include non-Indigenous persons, constitute the relevant group for the purposes of the right. It states that the nomination for the site was strongly supported by the 'broader community', although opposed by the Board of the Barngarla Determination Aboriginal Corporation.^[8] However, while the right to self-determination includes the right of every citizen to take part in the conduct of public affairs at any level,^[9] it needs to be considered in the context of other international obligations, particularly the rights to culture and non-discrimination and the rights of indigenous peoples under international law.^[10]

1.9 In addition, in determining whether any limits on the rights to culture and self-determination are permissible under international human rights law, it is necessary to consider the extent to which relevant groups have been consulted. As part of its obligations in relation to the rights to culture and self-determination, Australia has an obligation to consult with indigenous peoples in relation to actions which may affect them.^[11] This should protect the right of indigenous peoples to 'influence the outcome of decision-making processes affecting them, which is 'not a mere right to be involved in such processes or merely to have their views heard'.^[12] The principles contained in the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration) are also relevant. The Declaration provides context as to how human rights standards under international law apply to the particular situation of indigenous peoples. The Declaration affirms the right of indigenous peoples to self-determination^[13] and to have their culture respected, including the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, and have access in privacy to their religious and cultural sites.^[14] While the Declaration is not included in the definition of 'human rights' under the Human Rights (Parliamentary Scrutiny) Act 2011, it provides clarification as to how human rights standards under international law, including under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Cultural and Social Rights, apply to the particular situation of indigenous peoples.^[15]

1.10 The statement of compatibility states that the land was voluntarily nominated by its owners and that:

[a]ll people who may be affected by the location and operation of the Facility were invited to express their views about the potential impact of the proposed Facility on them. Many people in the local community engaged closely with the Government on the proposal. The level of engagement and local community support is evidenced in the outcome of a community ballot (conducted by the Australian Electoral Commission), which took place over a five-week period from Thursday 3 October to Thursday 7 November 2019. The question posed to members of the community was: “Do you support the proposed National Radioactive Waste Management Facility being located at one of the nominated sites in the community of Kimba?”

90.41 percent of eligible voters responded to the ballot, with a total of 734 formal votes. Of those who responded, 452 (61.58 percent) voted yes.^[16]

1.11 However, it is not clear from the statement of compatibility whether relevant Indigenous groups were consulted, in the way required by international human rights law, in choosing the location of the site. In particular, it is not clear what percentage of the local community that voted in support of the site nomination were members of relevant Indigenous groups. The only information provided in the statement of compatibility as to consultation with Indigenous groups is that the process leading up to selecting a site 'involved extensive consultation and information sharing with local communities, Traditional owners and others', but that the Board of the Barngarla Determination Aboriginal Corporation stated its opposition to the proposal.^[17] In fact, it would appear that the Board of the Barngarla Determination Aboriginal Corporation may not have been able to participate in the community ballot.^[18]

1.12 As such, further information is required in order to assess the engagement and compatibility of the measure with the rights to culture and self-determination, in particular:

1.13 The committee notes that the bill would enable the establishment of a national radioactive waste management facility at a specified location in South Australia. The committee notes the legal advice that as the site may have cultural significance for First Nations people the bill engages and may limit the right to culture and self-determination. In order to assess whether the bill engages and limits these rights the committee seeks the minister's advice as to the matters set out at paragraph [1.12].

1.14 The bill also provides that the regulations may prescribe additional land that is required to expand the specified site for the establishment and operation of the Facility, or the minister may make a notifiable instrument to specify additional land to provide all-weather access to the site.^[19] It provides that if such land is prescribed, all rights and interests in the land are acquired by the Commonwealth or extinguished and freed and discharged from all other rights and interests.^[20] This would appear to include the extinguishment of native title.

1.15 Before prescribing additional land the minister must be satisfied that consultation is undertaken, by inviting (through publication in a newspaper) each person with 'a right or interest in the land' to comment and taking such comments into account.^[21] The bill provides that these consultation requirements are taken to be an exhaustive statement of the requirements of the natural justice hearing rule.^[22]

1.16 The ability to compulsorily acquire additional land, which could lead to all rights and interests in that land being extinguished (including any native title), appears to engage and may limit the rights to culture, self-determination and equality and non-discrimination. The rights to culture and self-determination are set out above at paragraphs [1.5] to [1.6]. The right to equality and non-discrimination provides that everyone is entitled to enjoy their rights without discrimination of any kind, which encompasses both 'direct' discrimination (where measures have a discriminatory intent) and 'indirect' discrimination (where measures have a discriminatory effect on the enjoyment of rights).^[23]Indirect discrimination occurs where 'a rule or measure that is neutral at face value or without intent to discriminate', exclusively or disproportionately affects people with a particular protected attribute.^[24]

1.17 The United Nations Committee on the Elimination of Racial Discrimination (CERD Committee) has said that Australia's historically 'racially discriminatory land practices have endured as an acute impairment of the rights of Australia's indigenous communities' and that 'the land rights of indigenous peoples are unique and encompass a traditional and cultural identification of the indigenous peoples with their land that has been generally recognized'.^[25] It has found that the extinguishment of native title raises concerns as to Australia's compliance with the International Convention on the Elimination of All Forms of Racial Discrimination.^[26] In 2017, the CERD Committee expressed concern 'about information that extractive and development projects are carried out on lands owned or traditionally owned by Indigenous Peoples without seeking their prior, free and informed consent' and recommended that Australia 'ensure that the principle of free, prior and informed consent is incorporated into the Native Title Act 1993 and in other legislation as appropriate, and fully implemented in practice'.^[27]

1.18 The statement of compatibility acknowledges that the bill engages the right to equality and non-discrimination as the site for the Facility 'is home to a diverse local community'. But it states that it is 'sometimes necessary to treat people differently to achieve equality'.^[28] However, while the UN Human Rights Committee has confirmed that positive measures may be 'necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practice their religion, in community with the other members of the group', such measures must be aimed at correcting conditions which prevent or impair the enjoyment of the right to culture.^[29] Further, while 'special measures', which allow for differential treatment are possible under the International Convention on the Elimination of All Forms of Racial Discrimination, these must be taken to advance the enjoyment of human rights for certain groups.^[30] The statement of compatibility does not make it clear how enabling additional land to be acquired that may result in the extinguishment of native title (or the specification of a site for radioactive waste) could be said to advance the enjoyment of Indigenous peoples' rights.

1.19 If additional land around the site is required to establish and operate the Facility or to provide all-weather access, the bill would allow this to be prescribed by a legislative or notifiable instrument. All rights and interests in that land would then be acquired by the Commonwealth or extinguished. It is not clear from the explanatory materials if the additional land for the expansion of the site (the boundaries of which are specified in the bill) currently has native title rights attaching. The statement of compatibility states that the bill enables the minister to exclude rights or interests, including native title, from being acquired if necessary to establish and operate all-weather road access for the facility.^[31] The explanatory statement states that should all-weather road access be necessary 'it may not be necessary to acquire all rights and interests (for example, native title rights and interests...)'.^[32]

1.20 However, while it may not be necessary in all instances to extinguish native title, it appears that the bill would enable native title to be extinguished, without the consent of the traditional owners. It is therefore not clear how the rights to culture, self-determination and equality and non-discrimination would be protected in such instances. It is also noteworthy that the bill provides that the minister could prescribe additional land for all-weather access by way of a 'notifiable' instrument, rather than a legislative instrument. Notifiable instruments are not subject to any form of parliamentary oversight (such as disallowance).^[33] No explanation is given in the explanatory materials as to why the prescription of additional land would be by way of a notifiable, rather than legislative, instrument.

1.21 The bill provides there must be consultation with each person who has a 'right or interest' in the land before additional land is acquired. However, it is not clear whether this only includes those who have a current right (for example, native title), or anyone who may have cultural ties to the land. In addition, the bill provides that the consultation requirements set out in the bill, which require the minister to invite persons by publishing the invitation in a daily newspaper and a local newspaper (if any), are taken to be an exhaustive statement of the natural justice hearing rule. The explanatory materials do not provide any justification for this exclusion of the natural justice hearing rule, or any information about the impact of this exclusion.

1.22 As such, further information is required in order to assess the engagement and compatibility of the measure with the rights to culture, self-determination and equality and non-discrimination, in particular:

1.23 The committee notes that the bill would enable additional land to be acquired or extinguished to allow for the expansion of the site or to provide all-weather access to the site. The committee notes the legal advice that as the site may have cultural significance for First Nations people and as native title may be extinguished by these provisions, the bill appears to engage and may limit the rights to culture, self-determination and equality and non-discrimination. In order to assess whether the bill engages and limits these rights the committee seeks the minister's advice as to the matters set out at paragraph [1.22].

[3] Article 15 of the International Covenant on Economic, Social and Cultural Rights.

[5] See, UN Human Rights Committee, General Comment No. 23: The rights of minorities (1994).

[6] Articles 1 of both the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. See, UN Committee on the Elimination of Racial Discrimination, General Recommendation 21 on the right to self-determination (1996).

[10] Committee on the Elimination of All Forms of Racial Discrimination, General Recommendation 21: Right to self-determination, 1996, paras [4]–[5].

[11] The UN Human Rights Council has recently provided guidance on the right to be consulted, as part of its Expert Mechanism on the Rights of Indigenous Peoples, stating that 'states' obligations to consult with indigenous peoples should consist of a qualitative process of dialogue and negotiation, with consent as the objective' and that consultation does not entail 'a single moment or action but a process of dialogue and negotiation over the course of a project, from planning to implementation and follow-up', see UN Human Rights Council, Free, prior and informed consent: a human rights-based approach - Study of the Expert Mechanism on the Rights of Indigenous Peoples, A/HRC/39/62 (2018) paras [15]-[16].

[12] UN Human Rights Council, Free, prior and informed consent: a human rights-based approach - Study of the Expert Mechanism on the Rights of Indigenous Peoples, A/HRC/39/62 (2018) paras [15]-[16].

[15] Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017) pp. 122-123.

[18] The Board took an action against the District Council of Kimba in the Federal Court of Australia, see Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1092. The case was brought claiming a contravention of the Racial Discrimination Act 1975 (Cth), (RDA), on the basis that the Council’s resolution of the franchise of the ballot led to the exclusion of members of the Aboriginal Applicant group who are holders of native title in the Council area but did not satisfy the eligibility criteria. The Court held that the Board of the Barngarla Determination Aboriginal Corporation did not establish contraventions of the RDA and the case was dismissed.

[21] Schedule 1, item 15, proposed new subsections 19A(3) and 19B(2) and section 19C.

[24] Althammer v Austria, UN Human Rights Committee Communication no. 998/01 (2003) para. [10.2]. The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'.

[25] Committee on the Elimination of Racial Discrimination (CERD), Decision 2(54) on Australia, UN doc CERD/C/54/Misc.40/Rev.2, 18 March 1999.

[26] Committee on the Elimination of Racial Discrimination (CERD), Decision 2(54) on Australia, UN doc CERD/C/54/Misc.40/Rev.2, 18 March 1999.

[27] UN Committee on the Elimination of Racial Discrimination, Concluding Observations of the committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/AUS/CO/18-20 (2017) paras [21]-[22].

[29] UN Human Rights Committee, General Comment No. 23(50): Article 27 (rights of minorities) (1994) para. [6.2].

[30] Article 1(4) of the Convention on the Elimination on all Forms of Racial Discrimination. See also UN Committee on the Elimination of Racial Discrimination (CERD), General Recommendation no. 32, The meaning and scope of special measures in the International Convention on the Elimination of All Forms [of] Racial Discrimination, 24 September 2009, CERD/C/GC/32.

[33] Noting that section 42 of the Legislation Act 2003 provides that only legislative instruments are subject to disallowance, not notifiable instruments.

Australian Parliamentary Joint Committee on Human Rights

National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 [2020] AUPJCHR 37 (26 February 2020)